Category: Bankruptcy Jurisdiction

By Donald L. Swanson The unexamined life is not worth living. --Plato And an unexamined value is not worth keeping. Here’s an unexamined value in mediation that’s held by many people: --“Mediation is an entirely-voluntary process and should not be mandated.” This value is expressed in many ways, such as: --“I will not order parties to mediate”... Continue Reading →

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By Donald L. Swanson The U.S. Supreme Court’s “public rights” doctrine has been around for a long time. Yet, during the entire time of its existence, the Supreme Court, (i) has failed to explain the distinction between public rights and private rights, and (ii) has been inconsistent in applying that distinction. Unfortunately, our bankruptcy world has... Continue Reading →

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By: Donald L. Swanson Justices Scalia and Kennedy are gone from the U.S. Supreme Court and replaced by Justices Gorsuch and Kavanaugh. Hopefully, this change provides a fresh perspective on bankruptcy law and a reset on bankruptcy court authority issues. Justices Scalia and Kennedy A reset is needed because Justices Scalia and Kennedy voted together to... Continue Reading →

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By: Donald L. Swanson The most important bankruptcy opinion from the U.S. Supreme Court, since enactment of the Bankruptcy Code in 1978, is this: --Central Virginia Community College v. Katz, 546 U.S. 356 (2006). Here’s why: Katz evaluates the U.S. Constitution’s Bankruptcy Clause against a conflicting part of the Constitution—i.e., the Eleventh Amendment; and Katz determines... Continue Reading →

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By: Donald L Swanson Back in 1966, when the Bankruptcy Act of 1898 was newly-eligible (in human years) for Social Security, the U.S. Supreme Court issued a 7 to 2 majority opinion in Katchen v. Landy, 382 U.S. 323 (1966). The Katchen opinion is founded in the U.S. Constitution’s “Bankruptcies” clause and authorizes bankruptcy courts to... Continue Reading →

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By: Donald L. Swanson Tuesday, July 31, 2018, is the last day of Anthony Kennedy’s three-decades-long service as a Justice of the U.S. Supreme Court (since February 18, 1988). On bankruptcy issues, Justice Kennedy did not author many opinions of any sort (majority, concurring or dissent). Nevertheless, he has always been a part of what I... Continue Reading →

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By: Donald L Swanson Actually, the U.S. Supreme Court does . . . but they’re wrong. Here’s why. Some History Back in early 1980s, when the Bankruptcy Code was but a few years old, the U.S. Supreme Court struggled with bankruptcy court jurisdiction. --Northern Pipeline That struggle resulted in the Supreme Court's 1982 Northern Pipeline v.... Continue Reading →